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Political Institutions: The President

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1 Political Institutions: The President
APGOPO Alisal High School Mr. Barclay

I. Deliberations at the Constitutional Convention. A. Alternatives. 1. Some proposed a plural executive. 2. Some wanted an executive council to have veto power over presidential actions. 3. Some (e.g., Alexander Hamilton) wanted a President with a life term. 4. Eventually, compromises brought about a single, elected President with a fixed term of office. Alexander Hamilton

3 Deliberations at the Constitutional Convention
B. Concerns of the Founders. 1. Fear of an excessively strong President. a. Fear that the presidency would be the "fetus of monarchy" (Edmund Randolph). b. Concern over no term limits (no 22nd Amendment until 1951).

4 Deliberations at the Constitutional Convention
2. Fear of an excessively weak President who would become a "tool of the Senate" because of its ratification and confirmation powers. 3. The basic problem of creating a presidency was expressed by Governor Morris: "Make him too weak: the legislature will usurp his powers. Make him too strong: he will usurp the legislature." The Governor Morris

5 Election of the President
1. Some wanted Congress to elect the President ---> fear of congressional dominance. 2. Some wanted direct election. Problems. a. Inordinate weight to large states. b. Demagogues might have excessive appeals to the masses. c. Illiteracy was common. d. Communication was poor.

6 Election of the President
3. The compromise: the Electoral College. a. The people had some input. b. Large states had a good amount of influence, but small states were protected by having a minimum of three electoral votes. c. Small states would also have a great deal of clout if the election were thrown into the House (and it was assumed that this would happen often since the two party system was not anticipated). Under this scenario, a state has one vote and small states are therefore grossly overweighted

7 Election of the President (con’t)
D. Term of office: Fear of an unlimited number of terms of office were quieted when Washington chose not to run for a third term. This precedent was followed until 1940 Washington’s Farewell

8 The First Presidents: Washington-Monroe, 1789-1825
A. All eminent men who were active in the movement for independence, all but Adams served two terms, all but Adams were Virginians. B. Though Washington warned against it, political parties developed. C. General "rule of fitness" prevailed in making appointments. Partisanship did become a factor, but generally only well-respected men received appointments. D. The presidency was kept modest. It was assumed that Congress would take the leading role in the new national government

9 Andrew Jackson, 1829-1837, and the Expansion of Presidential Power
A. Use of spoils system. B. Jackson vetoed 12 acts of Congress, more than all his predecessors combined. C. Jackson ignored a Supreme Court order regarding Indian removal “Old Hickory”

10 The Reemergence of Congress, 1837-1932
A. With the end of Jackson's second term, Congress quickly reestablished its power. B. There were some brief flashes of presidential power, e.g., the wartime presidency of Lincoln (e.g., suspension of habeas corpus, blockading the South, raising an army, issuing the Emancipation Proclamation -- all without congressional consent), but Congress was the dominant branch. Of the next eight Presidents after Jackson, none served more than one term of office. C. With the exceptions of Theodore Roosevelt and Woodrow Wilson, the presidency was seen as a negative force -- a source of opposition to Congress, not a source of initiative and leadership for it. This was best illustrated by Grover Cleveland's 414 vetoes, more than any President until FDR President Grover Cleveland

11 The Reemergence of Congress, 1837-1932
D. Today, we are used to thinking that the President initiates legislative programs and Congress then responds; until the 1930's, however, the opposite was usually the case. E. In the past, it took either a strong personality (e.g., Jackson, TR, Wilson) or a crisis (e.g., Civil War, World War I) for the President to become the central figure of government President Woodrow Wilson

12 Emergence of the Presidency
A. Another crisis (the Great Depression) Once again led to increased presidential power -- B. FDR's New Deal. With the onset of World War II, a foreign policy crisis led to continued presidential power. C. The development of the Cold War facilitated continued presidential initiative and power: Truman, JFK, LBJ, Nixon. D. In the 1970's, Congress finally reasserted itself, but with mostly short-term results (as we shall see). Reagan restored the power and prestige of the presidency. E. Bush 43 strengthened pres. authority, e.g., with war powers and Patriot Act FDR

I. Qualifications. A. Natural-born citizen. B. At least 35 years of age. C. Residency for at least 14 years.

14 Term of Office A. Four years. B. Maximum of two elected terms. 1. Washington's precedent was institutionalized by Amendment Passage of 22nd Amendment was due to the Republican Congress' concern over future FDRs. 3. Possible to serve just under 10 years in office if a V.P. becomes President just after the midpoint of a President's term of office. If a V.P. serves less than half of a President's term, he can be elected to the presidency twice. If a V.P. serves more than half of a President's term, he can be elected to the presidency only once. a. Lyndon Johnson succeeded JFK in 1963, and was therefore eligible to be elected twice. b. Gerald Ford succeeded Nixon in 1974, and was therefore eligible to be elected only once. An unhealthy looking FDR

15 Compensation A. Set by Congress. Cannot be raised or lowered during President's term of office for fear of Congress using undue influence. B. Salary was raised from $200,000 to $400,000 in (First raise since 1969) C. Numerous other "perks." D. An opportunity to make some serious money after leaving office: 1. Speaking fees, e.g., Reagan was paid $2 million by a Japanese firm to make three speeches. Clinton earns up to $300,000 per speech. 2. Writing memoirs, e.g. Nixon. Clinton received a $12 million advance from publisher. 3. Serving on corporate boards of directors, e.g. Ford

16 Succession If office of presidency is vacant due to death, resignation, or impeachment and removal, the V.P. becomes President. (He in turn nominates, and Congress confirms, a new VP). If V.P. dies before his inauguration as President, the line of succession is as follows: Speaker, Senate President Pro Tem, Sec. of State, Sec. of Treasury, Sec. of Defense, and then the other Cabinet secretaries in the order of the creation of their offices. (Presidential Succession Act of 1947) President Harry S. Truman

17 Succession B. If the President is disabled, the 25th Amendment applies: 1. The President informs the Congress of disability and the V.P. becomes Acting President. 2. If the President is unable to inform Congress (e.g., coma), the V.P. and a majority of Cabinet secretaries can go to the Congress and receive approval for the V.P. to become Acting President. 3. In either case, the President regains powers by informing the Congress of his intent to return. In case of dispute, Congress has the power to decide who shall be President. Ronald Reagan Assassination Attempt

Original conception of the Founders: Congress, not the President, was to be the dominant power. A. Some Presidents (e.g., Harding, Coolidge) have had a limited view of the office and have let Congress take the initiative. B. However, recent Presidents (e.g., LBJ, Nixon, Reagan) have tried to assume more control and greater leadership by taking the initiative themselves. The power of the office has grown considerably throughout most of the 20th century

19 Non-Constitutional Sources of Presidential Power
A. Unity of the office: the office is held by one man, as opposed to the 535-member Congress. Presidential character and personality: Strong personalities such as the Roosevelt’s And LBJ can have great impact. C. Growing complexity of society: With a highly industrial and technological society, people have demanded that the federal government play a larger role in areas of public concern, e.g., pollution, labor issues, air travel safety. The executive branch has thus grown to meet those public demands “The Johnson Treatment”

20 Non-Constitutional Sources of Presidential Power
Congressional delegation of authority to the executive branch. 1. Congress often writes broadly worded legislation and lets executive agencies "fill in the holes. 2. Congress often bows to presidential Demands in time of economic or foreign crisis. 3. Congress often bows to The President when he can proclaim a mandate from the people after a large electoral victory, e.g., Reagan insisting upon tax cuts and higher defense spending after the 1980 election

21 Non-constitutional sources of presidential power
Development of the mass media casts the President into the public eye use of t.v. as the "electronic throne.“ Special addresses, press conferences, Saturday morning radio chats, photo opportunities, sound bites, staged events, “going public.” Emergence of the U.S. as the great superpower after WWII. Development of the Cold War placed the U.S. into a virtual non-stop crisis situation after > assumption of great powers by the President to deal with various foreign crises FDR’s “Fireside Chat”

22 Three Rules of Thumb to Maximize Presidential Power and Effectiveness
"Move it or lose it." Presidents should get things done early in their terms when their popularity is at its highest (e.g., Reagan's tax cuts in 1981). Popularity declines over time. "Avoid details." Don't try to do too much. Concentrate on a few top priorities (e.g., Reagan concentrating on tax cuts and higher defense spending) "Cabinets don't get much done; people do." Place more trust in immediate White House staff to accomplish tasks instead of Cabinet secretaries who have divided loyalties Obama is already a record setter

23 ROLES OF THE PRESIDENT I. Constitutional roles. A. Chief Legislator. 1. Powers. a. Proposes legislation. b. Signs laws. Sometimes uses “signing statements:” 1) Gives notice of his interpretation of the law, how he intends to enforce it, or even IF he intends to enforce it. 2) Under Reagan, only 75 of these were issued. By Jan. of 2008, Bush had issued ) Critics claim that, in effect, these give the president a line item veto.

24 Constitutional Roles Vetoes legislation (but
lacks line item veto struck down by Supreme Court because of conflict with separation of powers). Calls special sessions of Congress. Makes a State of the Union Address to Congress.

25 Constitutional Roles 2. Checks. a. Congress need not pass suggested legislation. b. Congress can override veto with 2/3 majority in both houses.

26 Chief Executive 1. Powers. a.“Take care” clause of Article II requires that Pres. enforces laws, treaties, and court decisions. This clause has also been used to justify: 1) Impoundment 2) Lincoln’s suspension of habeas corpus Electronic eavesdropping by Bush 43 administration 4) Foreign Intelligence Surveillance Act (FISA) enables President to go to secret FISA court to obtain warrants for conducting surveillance President Abraham Lincoln

27 Powers b. Appoints officials to office, and can fire them.
c. Issues executive orders (which have the force of laws) to carry out laws. These do not need congressional approval 1) FDR issue an executive order to intern Japanese-Americans during WW II 2) LBJ's executive order #11246 that required affirmative action programs for federal contractors. 3) Bush 43 created Office of Homeland Security after 9-11 through an executive order. (Later made a Cabinet Dept.) FDR’s Executive Order 9066

28 Checks 1. Congress passes the laws and has the "power of the purse.“ 2. Senate can reject appointments and treaties. 3. Impeachment (by House) and removal (by Senate) 4. Supreme Court can strike down executive orders

29 Commander in Chief 1. Power: Head of the armed forces (link w/civilian supremacy). 2. Checks. A. Congress appropriates For the military. Congress declares war. C. War Powers Act of 1973 (covered later)

30 Commander in Chief D. Chief Diplomat. 1. Powers. a. Sets overall foreign policy (confirmed by US v. Curtiss-Wright, 1936) b. Appoints and receives ambassadors. c. Negotiates both treaties and executive agreements. d. Negotiates “congressional-executive agreements” with leaders of other nations that require the simple majority consent of both houses of Congress. Example: NAFTA. e. Gives diplomatic recognition to foreign governments West Wing: “The State Dinner”

31 Commander in Chief 2. Checks.
a. Congress appropriates funds for foreign affairs. b. Senate can reject ambassadors and treaties. E. Chief of State. 1. The ceremonial head of our nation, e.g., tosses out the first ball of the baseball season, bestows the medal of honor, visits areas struck by natural disaster. 2. Most nations separate the Chief Executive and Chief of State roles (e.g., Britain has a prime minister and a monarch, respectively), but the office of the presidency combines both of these roles. Babe Ruth with Herbert Hoover, 1933

32 Commander in Chief F. Chief Jurist 1. Powers. a. Appoints federal judges. b. Issues pardons (e.g. Bush 43 pardon of Scooter Libby) and amnesty. 2. Checks. 1. Senate can reject judicial appointments. 2. Senators can place “holds” on 3. Senators can filibuster nominations

33 Non-Constitutional Roles
A. Head of Political Party 1. Selects the party's chairman of the national committee and v.p. nominee. 2. Political patronage. B. Chief Economist. Responsible for the overall health of the economy. Proposes the federal budget (though Congress can alter it). The Obama Campaign Broke All Records for Fundraising

I. Executive Office of the President. A. White House Office/White House Staff 1. Immediate staff of President. Office space in West Wing of White House --->proximity to President. Rule of Propinquity: power is wielded by people who are in the room where decisions are made West Wing Staff advise Bartlett

35 Executive Office of the President
Organization: two general forms: Circular method (used by FDR and Carter): President is the "hub," and numerous assistants are the "spokes." Pyramid method (used by Ike, Nixon, and Reagan): Assistants report through a hierarchy, ultimately to a Chief of Staff, who then reports to the President Pyramid Design

36 Executive Office of the President
c. Analysis: 1). The circular method allows for greater access and more information, but at the expense of efficiency. Presidents (e.g., Carter) can become overworked and overwhelmed by details, losing sight of the greater picture and their broad goals. 2).The pyramid method allows for greater efficiency, but at the expense of access and information. Presidents can be "kept in the dark" (e.g., Reagan's ignorance during the Iran-Contra scandal) by a "palace guard“ (e.g., during the Nixon presidency) and can thus "lose touch" with the nation Official Seal of the Executive Office of the President

37 Executive Office of the President
3. Appointments to the White House Office, e.g. Chief of Staff, generally do not require Senate consent ---> officials are less subject to testifying before Congress since they have a greater degree of executive privilege protection. Presidents typically seek people who will be loyal -- fewer divided loyalties as compared to Cabinet positions. 4. Reliance on small circle of WHO staff can lead to problems, e.g. overly optimistic assumptions about going to war in Iraq and the prospective situation after the war Leo McGarry is Barlett’s Chief of Staff in the West Wing

38 Executive Office of the President
OMB: prepares the annual budget and reviews federal programs. C. NSC: coordinates foreign/military policy. Increasing importance of the National Security Adviser since the Nixon presidency. CEA: three-person advisory group on economic policy. Council on Environmental Quality

39 Cabinet A. Definition: the heads of the Cabinet depts. and 5 others who hold "Cabinet rank" (OMB Director, CIA Director, White House Counselor, UN Ambassador, US Trade Rep). B. Each of these is appointed by the President w/Senate consent. C. In parliamentary systems: 1. Cabinet officials are members of Parliament. 2. The Cabinet meets regularly 3. The Cabinet collectively hammers out public policy.

40 Cabinet D. In our system: 1. Cabinet officials are constitutionally banned from also being members of Congress. 2. The Cabinet meets irregularly. Only at the call of the President 3. Cabinet officials are more interested in defending/enlarging their own departments than they are in meeting together to hammer out public policy. Many newly-elected Presidents speak of enlarging the Cabinet's role, but then think better of it as time goes on. a. A reason for this is the divided loyalties of Cabinet officials: are the Secretaries most loyal to the President? To the Congress (which funds the departments)? To client groups (which depend upon the departments)? To the employees within the departments (with whom the Secretaries must deal on a daily basis)? b. Another reason is that the President’s goals often conflict with Cabinet Dept. goals, e.g., the President may want to cut spending, but Cabinet Secretaries generally want to see their departments grow rather than shrink.

41 Cabinet E. Presidential influence over the Cabinet: limited: 1. Presidents can, of course, fire the political appointees within a department. 2. However, Presidents have little control over the civil service employees of a department. These account for > 90% of all the people who work within the Cabinet departments, and it is exceedingly difficult to fire them from their positions

42 Cabinet F. Factors affecting selection of Cabinet Secretaries:
1. Party affiliation. 2. Interest group influence. 3. Race. 4.Sex. 5.Geographical diversity. 6.“Confirmability.” JFK’s Presidential Cabinet

43 Federal Appointments III. Who gets appointed to federal positions?
A. As mentioned, the number of appointments is large, but the percentage of appointed positions in the federal government is small. (Less than 10%). B. Presidents often do not know their appointees well -- They depend heavily on staff recommendations.

44 Federal Appointments C. Background of appointees: 1. Tend to come from private industry, universities, law firms, think tanks, Congress, state/local government. 2. Most have had some federal experience. 3. Some have had some federal experience just prior to appointment. 4. Some are "in-and-outers," i.e., people who alternate between jobs in the public sector and private sector -- the "revolving door."

45 Vice President A. Only two constitutional duties: 1. Become President or Acting President if the office of President is vacant. 2. Preside over the Senate, voting only in case of ties. B. Traditionally, the V.P. is a dull, do-nothing job: 1. "The vice presidency isn't worth a pitcher of warm spit." (John Nance Garner) 2. "... the most insignificant office ever conceived." (John Adams) 3. "I do not choose to be buried until I am really dead." (Daniel Webster, on refusing a v.p. nomination in 1848) One of the Most Powerful VP’s in History: Richard Cheney

46 Vice President A Only two constitutional duties:
1. Become President or Acting President if the office of President is vacant. 2. Preside over the Senate, voting only in case of ties. B. Traditionally, the V.P. is a dull, do-nothing job: 1. "The vice presidency isn't worth a pitcher of warm spit." (John Nance Garner) 2. "... the most insignificant office ever conceived." (John Adams) 3. "I do not choose to be buried until I am really dead." (Daniel Webster, on refusing a v.p. nomination in 1848). Current VP Biden: No Socks?

47 Vice President C. The job of a V.P. is basically what the President says it is ---> often involves unappealing work (e.g., attending funerals of foreign leaders). V.P. is often selected not on basis of qualifications, but on basis of balancing the ticket. After he has "done his job (i.e., helped win votes)," the V.P. is often "put out to pasture" for dull work. D. Importance of the office: 1. 9/44 Presidents have not finished their terms of office. 2. V.P. can become Acting President if the President is disabled. 3. In recent years, Presidents (e.g., Carter, Reagan, Clinton) have made more effective use of the V.P. This is especially true of Bush-Cheney. 4. Vice presidency can be a steppingstone to the presidency, e.g., Bush 41. Johnson (the South) and Kennedy

I. Power of the office of the presidency. A. President's powers are not as clearly defined in the Constitution as are Congress'. Constitution grants broadly-worded powers (e.g., "executive power") to the President, but does not spell them out very clearly. B. In times of emergency, power grows to vast proportions, e.g., FDR's prerogative theory: In times of emergency, the President can assume the powers of a monarch. C. In "normal" times, the President has to deal with the system of checks and balances ---> a dilemma: we expect so much of the President, but we place a number of obstacles in his path. D. One way of looking at power is to recognize that the powers of the President are great, but so are the problems of the 21st century. Bush’s Most Charismatic Moment of his Presidency

III. Checks that weaken the President. A. Traditional, constitutional checks: Congress, courts. B. Informal checks: 1. Congressional leaders. 2. Cabinet members. 3. Bureaucrats. 4. Political parties. 5. Interest groups. 6. Media: adversarial journalism, “gotcha” journalism Use of the independent counsel (e.g., Kenneth Starr). Law was repealed in ~1999. President may still appoint a special prosecutor, but latter does not have the same degree of independence from the President, i.e., he can be fired by the President (as in the “Saturday Night Massacre”) Senators’ use of “holds” and filibusters on pres. nominations Divided govt. More of a multilateral world than a world in which it is more difficult for the US to act unilaterally.

IV. Suggestions for strengthening the presidency: A. Revitalize political parties to make it easier for the President to get things done. B. Revise constitutional restraints: 1. 6-year term of office, w/no reelection. 2. 2 or a 3 person presidency. 3. Give the President the power to dissolve Congress and call for new elections. 4. Allow members of Congress to take positions within the executive branch. 5. Provide a unified party ticket of President/Senator/Congressman -- no more split tickets.

I. Historical background. A. Founders' intent on Congress to be the dominant branch. B. In the 20th century, the President has generally been more dominant. C. Congress, however, from time to time seems to reassert itself, e.g., during the mid-70's and during the 104th Republican Congress (e.g., govt. shutdown in 1995) II. Sources of conflict between the President and Congress. A. Separation of powers and checks and balances -- the Constitution is "an invitation to struggle between the President and Congress." There is supposed to be conflict. B. Each represents different constituencies: 1. Members of Congress represent state and local interests ("All politics is local"). 2. The President, however, represents the national interest. -- This divergence can be seen in the battle over developing a nuclear waste storage facility in Yucca Mountain, Nevada. Nevada members of Congress have asserted their state/local interests in opposing the facility, but Bush supported the facility on the basis of national interests. Obama and Congressional Supporters

C. Different times of election ---> difficult for either to gain excessive power for any great length of time, e.g., Clinton was elected in '92 w/a majority of Democrats in Congress, but just two years later the Republicans captured a majority of both houses. D. Partisanship. 1. Since 1952, Presidents have often faced a Congress that has had a majority of the opposing party. 2. Even when the Congress has a majority of the same party as the President, intra- party struggles are common. With the weakening of political parties, the President does not have a strong "hold" on members of his own party in Congress. For example, many Democrats opposed Clinton’s health care reform proposals. Some congressional Republicans want a stricter immigration policy than Bush 43. “You Lie” said Republican Joe Wilson

E. President's unity of his office conflicts with the diffusion of power among 535 members of Congress. When he was in Congress, Gerald Ford spoke of "presidential arrogance;" when he became President, he instead complained about "congressional irresponsibility." F. "Two presidencies" thesis: Congress tends to be more cooperative with the President on foreign policy and national security issues (esp. in a crisis), but is less cooperative on domestic and economic issues.

III. Sources of presidential influence on Congress. A. Use of media. Media focuses more on a single person than on 535 people. President can easily go directly to the people with his case. “Presidential power is the power to persuade” (Neustadt) B. "Mandate from the people" after winning election by a large margin. C. Patronage. 1. Enables a President to carry out policy his way. 2. Enables a President to cultivate members of Congress by seeking their input on appointments (e.g., Rudman's influence on the Souter appointment). D. Chief of Party role: convincing members of Congress to act in interests of "party unity." E. Personal lobbying of members of Congress. Use of both favors and punishment for cooperative or uncooperative members. F. Veto, or its threat. 93% of vetoes are not overridden, so even the threat of a veto carries weight. G. Presence of a national emergency.

-- Throughout much of this century, the President has been the "great engine of democracy.“ Seemingly, the President was supposed to exercise great power to meet his goals. In the wake of the Vietnam War and Watergate, however, Congress reasserted itself against what came to be seen as an "imperial presidency." The Watergate Effect

I. Intro. A. Arthur Schlesinger's The Imperial Presidency (1973) suggested that presidential power had grown excessive ("imperial"). B. Theodore Lowi's response: 1. Economic growth necessitated a strong executive branch. 2.Congress itself delegated strong powers to the executive branch, esp. in area of foreign policy.

II. Areas of abuse cited by Schlesinger. A. War powers. 1. Constitutional conflict of Congress' power to declare war vs. President's power as Commander in Chief. 2. In the 18th century, Congress had more time to deliberate war issues; in the modern era, however, Presidents have argued that they need more flexibility to meet rapidly changing conditions. 3. Presidents have sent troops without a congressional declaration of war more than 125 times. This has happened very frequently since 1945 (cite examples). 4. Congress has in fact generally gone along with these operations, and has of course funded them, as well. When public opinion turns against the operations, however, Congress has often responded (e.g., Vietnam War). 5. One of the reasons Congress has gone along with these operations without a formal declaration of war is that such a declaration carries with it the transfer of great emergency powers to the President that the Congress may not want to grant him.

B. Emergency powers: In time of war or emergency, the President assumes great powers. Examples: suspension of habeas corpus, censorship of mails, control of manufacturing, control of communication and transportation, declaration of martial law, Patriot Act, analysis of citizens’ telephone records by the NSA. C. Use of executive agreements rather than treaties. 1. The former does not require Senate ratification as does the latter. The former are "deals" between the President and the head of another nation (e.g., the destroyers-for-bases deal between FDR and Churchill in 1940). 2. Since WWII, the number of executive agreements has vastly outnumbered the number of treaties. Between , there were > 4100 of the former, and less than 200 of the latter. 3. What is particularly galling to Congress is that treaties are often on relatively trivial issues (e.g., archaeological artifacts in Mexico), but executive agreements are often on matters of great importance (e.g., military commitments to various nations).

D. Executive privilege. 1. Def.: the right of President to not divulge conversations between himself and his advisers. Example: Bush refused to tell Congress who sat in on Cheney’s energy task force 2. Presidents claim that if such conversations were not "privileged," advisers would be hesitant to give straightforward advice. 3. Critics claim that Presidents have abused this privilege by claiming it under the guise of "national security." 4. In U.S. v. Nixon (1974), the Supreme Court stated that Presidents are in fact entitled to executive privilege most of the time, but not in criminal cases.

E. Impoundment. 1. Def.: the refusal of the President to spend money that has been appropriated by Congress. In the past, this was done when there was an obvious need, e.g., reducing defense spending after a war ended.. 2. Without a line item veto, Presidents must either sign an entire bill or veto it. As a result, Presidents may be unhappy with funding amounts for certain parts of a bill, and want to withhold such funding. 3. Nixon impounded funds for policy objectives. Some members of Congress were livid that money was not spent when it had been lawfully appropriated by legislation. Such impoundment seemed unconstitutional.

I. Background: The Vietnam War, Watergate, and the resignation of Nixon ---> a reassertion of congressional authority in mid-1970s. II. War powers: passage of the War Powers Resolution of 1973. A. President can send troops overseas to an area where hostilities are imminent without a congressional war declaration only under these circumstances: 1. Must notify Congress within 48 hours. 2. Must withdraw the troops after 60 days (can be extended another 30 days if the safety of the troops requires it). 3. Must consult w/Congress if troops are to engage in combat. 4. Cong. can pass a resolution, not subject to presidential veto, to withdraw troops.

I. Background: The Vietnam War, Watergate, and the resignation of Nixon ---> a reassertion of congressional authority in mid-1970s. II. War powers: passage of the War Powers Resolution of 1973. A. President can send troops overseas to an area where hostilities are imminent without a congressional war declaration only under these circumstances: 1. Must notify Congress within 48 hours. 2. Must withdraw the troops after 60 days (can be extended another 30 days if the safety of the troops requires it). 3. Must consult w/Congress if troops are to engage in combat. 4. Cong. can pass a resolution, not subject to presidential veto, to withdraw troops.

Criticisms. 1. Unconstitutional – usurping President's authority as Commander in Chief. 2. Ties the hands of the President -- too inflexible. 3. Makes it easy on the enemy -- just wait days for US troops to withdraw. C. Presidents have claimed the act to be unconstitutional and have disregarded it, but there has been no lawsuit to determine its constitutionality. A "political hot potato?" III. Emergency powers: passage of National Emergencies Act of 1976: A. President must inform Congress in advance of powers to be used in emergencies. B. State of emergency automatically ends after 6 months. C. President can declare another 6 months of emergency, subject to cong. review.

IV. Congress and the CIA. A. Past CIA abuses (e.g., coups in Guatemala and Iran in the 1950's, operations in Chile in 1970s, domestic operations). B. Church Committee investigations of abuses in 1970s. C. Hughes-Ryan Amendment, 1974, established eight congressional oversight committees. (Later reduced to just two). D. Foreign Intelligence Surveillance Act (1978): established a FISA court to authorize electronic surveillance of telephones, etc. for foreign intelligence purposes. Requires fed. govt. to go through this court if it wants to conduct such surveillance. E. Some in Congress have demanded a “truth commission” to investigate possible CIA abuses concerning the use of torture during the Bush Administration The CIA Engineered Coup in Guatemala, 1954

V. Impoundment: passage of Budget and Impoundment Control Act of 1974: A. If President impounds funds temporarily (deferral), either house can override. B. If President impounds funds permanently (rescission), that act is automatically voided unless both houses of Congress approve within 45 days. C. Establishment of Congressional Budget Office (CBO) as a check on OMB. D. Congress given three additional months to consider the President's proposed budget. E. Establishment of Budget Committees in each house.

VI. Confirmation of presidential appointees. A. Senatorial courtesy a long-established practice: before President makes an appointment within a state, he will consult with the two senators of that state to get their approval. B. Much closer scrutiny given by Senate to recent appointments, e.g., rejection of Bork as Supreme Court Justice, emotion-charged hearings for Clarence Thomas. C. Controversy over recess appointment of John Bolton as UN Ambassador D. "Rule of fitness" seems to no longer be sufficient; now, a nominee's policy preferences are fair game for much more senatorial scrutiny than before. E. Long confirmation delays (through use of the “hold”) of years with some of Clinton’s judicial nominees due to the belief that the nominees were too liberal/out of the judicial mainstream. Democrats in Senate returned the favor in the Bush Administration by delaying confirmations

VII. Legislative veto. A. In the past: Congress passed a law -The relevant executive agency issued regulations to enforce the law -Congress could then analyze those regulations and veto them if it so desired. B. The legislative veto was a way of forcing the bureaucracy to conform to congressional intent. C. In the case of INS v. Chada (1983), however, the Supreme Court declared the legislative veto to be an unconstitutional violation of separation of powers. D Congressional Review Act allows Cong. to repeal regulations with approval of President  Congress repealed OSHA regulations on ergonomics (that had been put in place under Clinton) in 2001 – this was the first time the act was used. Congress can apparently still use the legislative veto, esp. if an agency does not challenge its use. Furthermore, Congress can use other powers (e.g. funding of agencies) to exert influence over agencies.

VIII. Foreign affairs. A. Use of appropriations power to influence foreign policy in the 1970s and 1980s: Congress cut off aid to South Vietnam, Angola, and the Contras. Congress tried to force Bush 43 into a deadline for withdrawing troops from Iraq by using funding as a lever. B. Iran-Contra hearings in the 1980s. C. Extensive debate over U.S. involvement in the Gulf War. Although Bush did not use the War Powers Act, he did go to Congress to get its approval for U.S. action. D. Although some in Congress grumbled over U.S. intervention in Kosovo in 1999, Congress funded the operation anyway. E. Congress gave strong support to Bush’s war on terrorism. F. Extensive debate over US involvement in war against Iraq in Although Bush did not use the War Powers Act, he did go to Congress to get its approval for U.S. action. G. Increasing criticism over war in Iraq. H. Criticism of Patriot Act and secret domestic surveillance programs of NSA without going through FISA court for prior approval. I. Congressional criticism/demand for hearings of Bush Administration’s handling of war in Iraq, and specifically Justice Dept. memos that gave a legal justification for use of torture.

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